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Hovanec v. Miller

United States District Court, W.D. Texas, San Antonio Division

July 22, 2019

ALISON HOVANEC, Plaintiff,
v.
TRACI MILLER, Defendant.

          ORDER

          XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE.

         On this date, the Court considered the Motion for Summary Judgment filed by Defendant Traci Miller (docket no. 75), and the responses and replies thereto. Plaintiff Alison Hovanec sues Traci Miller for violation of the Stored Communications Act (“SCA”), 18 U.S.C. § 2701 et seq., violation of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030 et seq., intrusion on seclusion, and intentional infliction of emotional distress. Miller moves for summary judgment on all claims. After careful consideration, the Court will deny the motion for summary judgment. The Court will set for a hearing Miller's request for exclusion of evidence under Rule 37(c) and Hovanec's motion for spoliation remedy.

         Factual and Procedural Background

         Plaintiff Alison Hovanec was friends with Defendant Traci Miller, and from May 2013 to May 2015, Miller worked under Hovanec as a wardrobe consultant/sales person for two companies, Carlisle Etcetera LLC and W by Worth. From May 2015 to Spring 2016, the relationship between Hovanec and Miller turned from friendly to somewhat antagonistic.

         Hovanec alleges that in May 2015, Miller disparaged her to her father and also refused to sell clothes and canceled her show, which reflected poorly on Hovanec. Hovanec alleges that Miller would complain about Hovanec to other wardrobe sales consultants and upper management at Carlisle Etcetera LLC and W by Worth, leading to Hovanec's termination as the local Director of Business Development for W by Worth in May 2015. Plaintiff alleges that Miller than gloated about being offered the job. Hovanec states that she began distancing herself from Miller, and most of their contact was through their daughters, who remained best friends.

         The undisputed summary-judgment evidence indicates the following. On Friday May 13, 2016, Hovanec and Miller and their daughters attended a movie in the park event. During the event, Hovanec and Miller had a confrontation over the fact that Miller's daughter did not want to spend the night with Hovanec's daughter at Hovanec's house. Hovanec and her daughter left the park, and Hovanec told Miller she would be contacting the girls' school about the incident. Miller tried texting and calling Hovanec on Saturday, but Hovanec did not respond.

         On May 16, 2016, Miller viewed Hovanec's LinkedIn profile and “unfriended” Hovanec. Miller depo. at 138. Miller testified that she “disabled [Hovanec's] connection to me on all social media.” Id. Also on May 16, Miller contacted Carlisle Etcetera about a blouse she purchased through Hovanec in November 2015 and then returned because she had not received a return credit. Miller depo. at 119. Miller testified that she contacted Carlisle Etcetera that day “because it had become apparent to me that the relationship between us was dissolved” because Hovanec would not return her calls on Saturday. Id. at 119-120. That same day, Hovanec received an email from Carlisle Etcetera, regarding Miller's message about the blouse refund.

         On May 16, 2016 at 12:05 p.m., Hovanec received an email from “Alison Hovanec” from the email address alisontheloser@gmail.com titled “Joel's so Called Divorce” that referred to her as “such as sucker.” Hovanec's mother also received an email from that address entitled, “Your Daughter is dating a married man!” and making disparaging remarks about her, including that she was a loser who was in a “downward spiral” and was not competent or able “to keep a job for more than a few months.” The Joel/”married man” referenced in the emails was Joel Sauceda, Hovanec's occasional boyfriend.

         Hovanec contacted Sauceda and asked him if he knew what to do to identify the person sending the emails and stop them. Sauceda owns an internet technology company and began devising a plan to identify the person through capturing their IP address.[1] Because the sender's email address was a gmail account, Sauceda would not be able to obtain the sender's IP address from the email itself, so he wanted to bring the user outside of gmail. Sauceda created a gmail account Roslynjames1954@gmail.com and began communicating by email with alisontheloser@gmail.com. Roslyn James was just a name he made up. Sauceda depo. at 120.

         Pretending to be Roslynjames1954, Sauceda wrote “I need info. must talk on private line. he will go down. working for the man.” The user at alisontheloser@gmail.com responded, “Working for what man? He is the agent of record for about a dozen different business entities all run out of a small crappy office in San Antonio. His house has been foreclosed on in Summerglen and license revoked involuntarily for Ad Plotter due to unpaid taxes. He lives in an apartment and drives a leased Mercedes. He is a total con artist. If you are a PI you can easily find all this out yourself.” Sauceda was “pretty shocked” that he got a response and wanted to get the person curious enough to click on a link to a webpage so he could capture their IP address. Sauceda depo. at 120, 122.

         Sauceda owned the domain greenpowur.com and created a webpage on that domain, on which he installed code provided from a web analytics company called statcounter that he knew would capture the IP address of a visitor to the page. Sauceda depo. at 49-51, 66.[2] Sauceda sent another email from roslynjames1954@gmail.com to alisontheloser@gmail.com stating, “he is up to some other crap now have you seen this green power thing he is doing? I do not see a corp registration for this. look at this page he has up. another scam.” That email contained a link to the webpage on greenpowur.com that included statcounter code to capture the IP addresses of page visitors.

         On the morning of May 17, Sauceda discovered from his statcounter report that the user had clicked on the link, and the statcounter report provided the user's IP address (108.65.34.232) and identified the user as having an AT&T U-Verse account, using a mac operating system (OS X) with a Safari browser, and being located in San Antonio, Texas. Sauceda's expert report states that the person clicked on the link, “where the static[3] IP address of 108.65.34.232 was captured along with identifying information to include a close proximity to Hovanec's house at [address] San Antonio, TX 78216, a MAC operating system along with AT&T Uverse service.” Sauceda report at ¶ 6.[4]

         Sauceda asked Hovanec if she knew who it could be. Hovanec had been in Miller's house many times and knew that Miller had AT&T U-Verse and a Mac operating system, and thus Hovanec suspected it was Miller behind the alisontheloser@gmail.com emails. Hovanec knew that Miller used a gmail account, so Sauceda determined that he would not be able to capture her IP address from an email. Hovanec and Sauceda devised a plan to email Miller and get her to click on a link to a webpage with the statcounter code to compare Miller's IP address to the one used by alisontheloser@gmail.com. They decided to do so using an email about the Carlisle Etcetera blouse return.

         Sauceda set up a different webpage on another domain he owned (shallybrady.com) and Hovanec sent Miller an email to Miller's personal email account tracilmiller@gmail.com about the message from Carlisle Etcetera and the blouse refund. Sauceda created an image of the Carlisle Etcetera email on the shallybrady.com webpage. On May 17, Hovanec emailed tracilmiller@gmail.com a link to the image, writing “I received this from Etcetera yesterday.” The email indicated that, to see the entire image, Miller would have to click on the link, which would take her to the shallybrady.com webpage with the statcounter code. Miller clicked on the image, which took her to the shallybrady.com webpage, and the statcounter report showed the IP address 108.65.34.232, with the user having a Mac operating system (OS X) with a Safari browser, and an AT&T U-Verse account.[5] This was the same IP address and information as the alisontheloser@gmail.com visitor.

         On May 17, 2016 at 3:38 p.m., Hovanec sent an email to Miller that included a preservation of records letter from her attorney. Docket no. 77 Ex. K. Miller admitted receiving the email. Miller depo. at 142. She testified that she did not take any action that day or afterwards to preserve the type of information described in the letter. Id. at 144. However, she called a friend who was an attorney. Id. at 145.

         Later on May 17, Sauceda sent another email as roslynjames1954@gmail.com to alisontheloser@gmail.com, and received a delivery failure notification from Gmail that the account did not exist. Sauceda report Ex. H. Discovery from Google reveals that the alisontheloser@gmail.com email was deleted on May 17.[6] Hovanec suspects that Miller deleted the email account after receiving the email from Hovanec's lawyer. Hovanec Aff. (docket 77-1) at 23.

         On May 17, Miller called Hovanec's father and left a voice message saying, “I'm very worried about Alison and that's why I'm calling you. Something has to be done. She needs help.

         Please call me.” Miller depo. at 135. Miller testified that she looked up his phone number online. Id.

         On May 18, Hovanec made a routine review of her AOL email account, which she had used since 2001, and discovered that all of her 9, 780 emails had been deleted. Many of these emails contained confidential attorney-client communications concerning her divorce proceedings. Although Hovanec and her ex-husband Moises Luevano had reached a Mediated Settlement Agreement on May 14, 2015, they still had not entered a final decree of divorce in May 2016. Hovanec contacted AOL and was informed that Luevano was the primary account holder and she was only a sub-accountholder. Hovanec then sought and obtained records regarding activity on the account and found that Luevano had accessed the account at 5:53 p.m. (after he had deleted the emails) to surreptitiously override the password changes that Hovanec made immediately after she learned that the emails had been deleted so that he could keep her out of her own email account. Hovanec learned that Luevano had always possessed the ability to access her emails, and realized that he had been accessing her emails throughout their marriage and during the pendency of their divorce to obtain information.

         In the following months, Hovanec spent a considerable amount of time reorganizing her deleted emails and incurring legal expenses in connection with “the computer breach.” In this process, on October 13, 2016, she accessed an old iCloud account to recover some personal emails and photographs that had been placed in her iCloud through her iPhone. In September 2015, Hovanec had stopped using her iPhone and iCloud because she felt that her information may have been compromised and that Luevano could track her whereabouts. Because she could not recall her password, she contacted Apple and was emailed a link to reset her password and gain access to the iCloud account that she had not accessed for approximately thirteen months.

         Upon opening her iCloud using her old Apple ID email address aliluevano@me.com, Hovanec discovered an email to that address from Google at 10:52 a.m. on May 16 stating that there was a request to add aliluevano@me.com email to “your Google account.” Another email was sent to that address stating that the alisontheloser@gmail.com account had been created at 10:53 a.m. The first email required the user to click a link to “verify” the request to add aliluevano@me.com to the Google account. Plaintiff alleges that Miller accessed her aliluevano@me.com email account to click the link to verify the addition of aliluevano@me.com to the alisontheloser@gmail.com account. Another email was sent to the aliluevano@me.com address on May 17 at 4:28 stating that the Google account alisontheloser@gmail.com was deleted, and “[y]ou received this message because aliluevano@me.com is listed as the recovery email for alisontheloser@gmail.com.” Plaintiff contends that this shows that Miller, who Plaintiff contends was the user behind alisontheloser@gmail.com, had access to her iCloud account and clicked on the link in the email to verify the addition of aliluevano@me.com to the alisontheloser Gmail account.

         Plaintiff filed her Original Complaint on August 14, 2017 against Miller and Luevano for violations of the Federal Wiretap Act, the Texas Criminal Wiretap Act, the Computer Fraud and Abuse Act (“CFAA”), [7] civil conspiracy, intrusion on seclusion, intentional infliction of emotional distress (against Miller only), and breach of fiduciary duty (against Luevano only). Defendant Luevano filed a motion to dismiss, arguing that all the claims against him had to be dismissed and submitted to arbitration. Defendant Miller filed a motion to dismiss all the claims against her for failure to state a claim under Rule 12(b)(6). Plaintiff then filed an Amended Complaint as of right, adding a claim under the Stored Communications Act (“SCA”).[8]

         The Court granted Luevano's motion to dismiss the claims against him because they were subject to an arbitration agreement. The Court also granted in part and denied in part Miller's motion. Docket no. 22. Specifically, the Court dismissed the Federal Wiretap Act and Texas Criminal Wiretap Act claims because Hovanec failed to establish that Miller “intercepted” any emails. As to the CFAA claim, the Court dismissed the claim for failure to establish the required losses, but granted leave to replead. The Court also dismissed the conspiracy claims. The Court denied the motion to dismiss the intrusion on seclusion and intentional infliction of emotional distress claims. Because the SCA claim was added after the motion to dismiss was filed, the Court did not address that claim. The Court then issued a scheduling order and set the case for a status conference on May 2, 2018.

         On April 16, Plaintiff provided her Initial Disclosures to Miller through her attorney Adam Cortez. Hovanec's initial disclosures listed three individuals as persons with discoverable information: Alison Hovanec, Marilyn Hovanec (“can offer testimony regarding the events giving rise to this cause of action”), and Joel Sauceda (“has relevant information regarding the methodology used to determine the IP address of the Defendant MILLER”). The initial disclosures did not list any category of document or specific document that would be relevant to damages, other than broadly including a catchall category of “[a]ny other documents in any form that Plaintiff has in her possession, custody or control that may be relevant to any claim or defense.” Docket no. 75-4 (Initial Disclosures). Under “Computation of Damages, ” Plaintiff's counsel wrote, “The Plaintiff is seeking damages that are still being calculated. The Plaintiff is also seeking reasonable attorney's fees as those are permitted by law” Id. According to Miller's motion for summary judgment, Hovanec did not supplement her disclosures or “produce any documentation on fees she claimed were permitted by law.” Docket no. 75 at ¶ 13. Further, at her December 2018 deposition, Hovanec confirmed that no documents had been produced that establish actual damages. Hovanec depo. at 129-130.

         On April 17, Plaintiff's counsel moved to withdraw, and thus Hovanec and her counsel were both ordered to appear at the status conference. At the status conference, the Court permitted Plaintiff's counsel Adam Cortez to withdraw and gave Plaintiff an opportunity to find new counsel. Plaintiff's new counsel John Carroll entered an appearance on May 21 and then filed motions seeking more time to complete discovery and designate experts and for leave to amend her complaint. Docket nos. 38, 39, 40. Miller, in turn, moved to dismiss all of Hovanec's claims with prejudice.

         On June 7, the Court denied Miller's motion because the requirements for an involuntary dismissal with prejudice had not been demonstrated and granted Plaintiff an additional thirty days to respond to Defendant's interrogatories and requests for production that were served on May 8 (making them due July 7, 2017). Docket no. 44. On June 13, the Court granted Plaintiff's motion for leave to file her Second Amended Complaint, which remains the live pleading. On June 15, the Court issued an amended scheduling order with a discovery deadline of October 31, 2018. Docket no. 47.

         On July 2, Plaintiff Hovanec filed her expert designations, designating Joel Sauceda and Steven Scott Broderhausen as experts. Docket no. 49. On July 31, Miller moved to extend her expert designation deadlines, and the Court granted an extension until September 4, 2018. Docket no. 50 & Text Order dated August 1, 2018. On September 5, 2018, Miller again moved to extend her expert designation deadlines, and the Court granted an extension until October 5, 2018. Docket no. 54 & Text Order dated September 6, 2018. Miller designated her expert, Russell McWhorter, on October 5. Docket no. 61.

         On September 28, Miller filed two motions to quash seeking to quash depositions of herself, her husband and fact witness Jason Miller, and expert Russell McWhorter (docket no. 57), as well as a subpoena issued by Hovanec to non-party AT&T (docket no. 58). The motions were referred to Magistrate Judge Farrer, who issued an order to confer and set the motions for a hearing on October 16. Docket no. 62. After conferring as ordered, the parties agreed that the depositions, as well as certain additional depositions, could proceed outside the discovery deadline of October 31, 2018, and asked the Court to approve an extension of the discovery deadline for the purpose of allowing the depositions. Docket no. 63. Miller also agreed to withdraw her objections to the third-party subpoena on AT&T. Magistrate Judge Farrer then cancelled the hearing, mooted the motions to quash, and ordered that the deadline to complete discovery was extended to November 28, 2018 “for the sole purpose of completing the depositions referenced in the parties' joint advisory.” Text Order dated October 24, 2018.

         On November 15, 2018, Miller filed an unopposed motion to extend the scheduling order deadlines for dispositive motions (from November 19, 2018 to January 15, 2019). Docket no. 64. The Court granted the motion and also continued the trial date from February 25, 2019 to April 8, 2019. Docket no. 65 & Text Order dated Nov. 20, 2018. On December 28, Miller filed another unopposed motion to extend the deadline for filing dispositive motions to February 15, 2019. Docket no. 66. The Court granted the motion and also re-set the trial date to June 3, 2019. Docket no. 67 & Text Order dated Jan. 3, 2019. At no time did either party file a motion seeking to extend the discovery deadline, which had expired on October 31, 2018, except as extended to November 28 for depositions as ordered by Magistrate Judge Farrer.

         The parties conducted depositions in late November and on December 5 and December 10, 2018. Miller contends that Sauceda's deposition was the first time Miller was made aware of the different GUIDs (globally unique identifiers) shown on the statcounter report and that it was the first time her expert had access to the statcounter data in native format. During the deposition, Sauceda logged into the program with Miller's expert McWhorter so that McWhorter could view the program and the data.

         On January 17, 2019, Hovanec filed an opposed motion to compel responses from Miller to Hovanec's requests for production, seeking an order overruling Miller's objections to certain specific requests and requiring production. Docket no. 68. According to the motion, Hovanec served interrogatories and requests for production on Miller on August 15, 2018, and Miller timely responded on September 21, 2018, pursuant to an agreement between the parties to extend the deadline. Hovanec's requests for production included RFP 3 “[a]ll data that was stored, retrieved, downloaded, restored, reconstructed, removed, deleted, salvaged, regenerated, and/or forensically extracted from the computer devices used by TRACI MILLER related to this action during the period of May 1, 2015 to the present time” and RFP 22 “Produce your MAC laptop, IPAD and smartphones used during the following time periods for inspection and retrieval of information under the guidelines set forth on the attached Exhibit ‘A' utilizing search terms as set forth in these requests for production which you used during the following time periods: a. September 1, 2014 to July 1, 2015; b. April 1, 2016 to October 1, 2016; c. August 1, 2017 to present.” Hovanec sought an order overruling Miller's objections and compelling responses.

         The Court referred the motion to Magistrate Judge Farrer, who scheduled it for a hearing on February 7. Miller then filed a motion asking for a hearing on Hovanec's objections to Miller's Rule 45 subpoena at the February 7 hearing. Docket no. 70. Miller had served a Rule 45 subpoena on Hovanec via email on January 25, 2019. The subpoena directed Hovanec to produce her Apple laptop computer owned or utilized during April and May 2016 and to permit inspection and forensic imaging of the device and subsequent analysis of the data (limited to “the use and/or creation of the email address alisontheloser@gmail.com and any other alleged act against Ms. Alison Hovanec”). Hovanec had objected to the subpoena on the grounds that it was improperly served, unreasonably required same-day production, was an attempt to circumvent the requirements of Rule 34 by requesting the same item as certain RFPs previously served pursuant to Rule 34, and was filed outside the discovery period in an attempt to circumvent that deadline.

         The Court denied the motion to set a hearing on the subpoena objections before Judge Farrer because no motion pertaining to the subpoena was currently pending for referral to Judge Farrer for him to consider at a hearing -- Hovanec had not moved to quash the subpoena and Miller had not moved to enforce it. The Court further noted that there were numerous problems with the subpoena, including that it was issued after the close of discovery and had been objected to under Rule 45(d)(2)(B). The Court directed the parties to confer and to file either a motion to compel or a motion to quash the subpoena, in which case the Court would consider the subpoena and any objections to it. The Court noted that, if no motion was filed, the Court would consider the issue resolved. No. motion was filed.

         The parties conferred on Hovanec's motion to compel as directed by Magistrate Judge Farrer and advised that, as to RFP 3 and RFP 22, they agreed “that Ms. Hovanec will provide protocol for examination of the requested data for Ms. Miller's review and discussion prior to production of any such data.” Docket no. 71. On February 7, Magistrate Judge Farrer held a hearing and denied Hovanec's motion to compel, primarily on the basis that it was untimely.[9]

         On February 15, Miller filed a motion to exclude Plaintiff's expert Joel Sauceda, and filed the instant motion for summary judgment. On July 2, the Court granted in part and denied in part the motion to exclude, ordering that Sauceda would be permitted to testify about the emails sent to alisontheloser@gmail.com and tracilmiller@gmail.com with links to Sauceda's webpages containing the statcounter code, and the resulting webpage views reported by statcounter and the information reported by statcounter, including the IP addresses. Docket no. 85. The Court concluded that Sauceda would not be permitted to testify that Traci Miller was the user/creator of alisontheloser@gmail.com. Id.

         Miller raises three primary arguments in her motion for summary judgment: First, that she is entitled to summary judgment on all claims because there is no evidence of damages or loss for any claim. Second, she is entitled to summary judgment because Hovanec has failed to produce evidence that Miller had access to her iCloud account. And third, she is entitled to summary judgment because there is no evidence that Miller created or used the alisontheloser@gmail.com account. In response, Hovanec submits her own affidavit as evidence of damages and contends that she has provided sufficient evidence to raise a fact issue as to whether Miller created the alisontheloser@gmail.com email account and accessed Hovanec's iCloud account. Hovanec further contends that Miller improperly failed to preserve evidence, including her wireless router, iPhone, text and email messages, and computer, and asks the Court to apply a spoliation presumption that the lost evidence would have supported Plaintiff's claims.

         Summary Judgment Standard

         Summary judgment is proper when the evidence shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgement as a matter of law.” Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52 (1986). A dispute of a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson, 477 U.S. at 248. Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails . . . to establish the existence of an element essential to that party's case and on ...


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